**8. Overview of the various allocation of burden of proof in practice**

It is expressly clear from the provisions of the Uniform Act that the allocation of the burden of proof for the seller's liability for non-conformity of the goods at the time the risk passes is imposed on the buyer. It is however rare to find under the Act an apportion of the burden to proof to the seller. There is a lack of necessary specificity and distinction to attribute it clearly to the seller.

In light of that and other considerations, attention should also be given to the fact that the Act is completely silent on the procedure for establishing the burden of proof. This can be explained by the fact that such an issue which is beyond the OHADA's scope of application and consequently be governed by the non-harmonised national laws of member countries. Consequently, such a question must be left to the courts of member states as a matter of procedural law. In addition, it is inappropriate for the Act, which relates to the cross-border sale of goods, to deal with matters of evidence or procedure. In fact, they are still some hurdles that beset the uniform working of the OHADA Uniform Act on General Commercial, considering the glaring differences between the procedural and evidential laws operating in the member States on matters of proof. This is as a result of the prevailing differences in legal cultures, procedures in the area of criminal proceedings which is out of the scope of the Act. Therefore, a degree of non-uniformity can be expected in matters of taking evidence and more broadly in allocating burden of proof.

In fact, the allocation of the burden of proof under the Uniform Act rests primarily on the basis of the *actori incumbit probatio* principle. Thus, the burden of

**259**

*Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

additional layer of complexity and unpredictability.

order to conform with the demands of his consumer buyers.

invokes Article 255 in its favour.

development.

**9. Conclusion**

tracting parties.

ings in the member states.

proof is largely dependent on the position of the parties in the process, that is, who

The common practice is that the responsibility of proof is often on the basis of proof proximity principle, whereby the responsibility to prove the non-conformity with standards of a good is transferred from the seller to the buyer once a purchased item is delivered to the buyer. The implication here is that the seller is responsible for proving the conformity or non-conformity of his/her good only a purchaser has not yet taken possession of or demanded the reservation of the particular good. *Therefore, the moment a buyer receives the delivered good raising the question of nonconformity, any further proof non-conformity would be his/her responsibility*.

It is suggested, however, that legal predictability should not be undermined any further by the introduction of the proof proximity principle into the UAGCL. As already alluded to, proof proximity can easily contravene the rule and exception principle, and its introduction necessitates a choice between the two, either as a matter of general principle or in the particular case. That, in turn, gives rise to an

The seller's duty in exercising his material duty of conformity under the UAGCL is fraught with some difficulties. One of such difficulty is to establish the seller's liability for the non-conformity of goods as to the specifications of a contract of sale of goods. There is still some confusion and uncertainty regarding the notion of conformity under the Act because the concept of conformity is dynamic and ambivalent. There is really a need to search for a quality standard, which can underpin the ultimate default of the fitness for ordinary purposes and engulf other aspects of conformity. This will greatly be in the interest of the commercial buyer in

The seller is equally expected to deliver goods which will satisfactorily serve the purpose for which commercial buyers intend to use them. This suggests therefore that the seller's expected obligation to deliver the adequate requirements to the goods under the contract would hardly in practice be that. This therefore raises the confusion and uncertainty in determining the seller's liability for the nonconformity of goods as to the specifications of a contract of sale of goods under the UAGCL. The concept of conformity must be handled in consideration with a number of issues, irrespective of the contractual stipulations agreed by the con-

It has also been evident that the issues of proof of lack of conformity under the Act be useful to introduce an overarching quality standard. However, to what extent should a sales law instrument govern the matters of proof, such as burden and standard of proof, and the evaluation and admissibility of evidence? It has been argued that the UAGCL is not capable of dealing adequately with the admissibility of evidence. Consequently, this may have considerable impact in establishing the seller's liability and on substantive law rights. No consistency in the exercise of this right is available under the UAGCL. There are undeniably differences in legal cultures, procedural environments, and views of the purpose of judicial proceed-

Reaching a substantial degree of international agreement on the rule and exception principle is a hard-earned achievement, which has potential to promote legal certainty in all areas falling within the Act's scope. From this standpoint, recognising proof proximity as the Act's general principle would be an unwelcome

<sup>45</sup> The author's translation.

#### *Sales and Conformity of Goods: A Legal Discourse DOI: http://dx.doi.org/10.5772/intechopen.93035*

*Banking and Finance*

the provision of Article 256 of UAGCL. It states:

*appear only later45.*

pursuant to Article of the UAGCL.

proving non-conformity rests on the buyer.

stating the existence of the principle without giving any further justification. The proof proximity pays attention to the ability of the party to gather evidence as well as the relevant facts and issues presented as proof. This implies that once a good is delivered to a buyer without a prior indication of deficiency from him/her (the purchaser), the responsibility to prove any claim based on lack of conformity of the delivered good becomes that of the buyer. This seems to be the spirit surrounding

*Conformity of the goods shall be appraised as of the day of delivery, even if defects* 

The rules on conformity under the UAGCL are by no means an exception in dealing with issues of proof as the case under the CISG. The point to be addressed here in the first place is the burden of proof. The burden of proof is not a legal obligation, but by its legal nature, a duty. The duty represents an obligation to oneself and not to the other party in a contract. The duty to proof is closely connected with the buyer's duty to examine the goods and to notify the seller. Namely, the seller will be liable for the non-conformity of delivered goods only if the buyer gives notice

The main purpose of the examination is to determine whether or not the goods are in conformity with the contract, that is, to reveal defects in quality, quantity, description and packaging. In fact, it is only on the result of the examination that the buyer can make a claim for nonconformity. It follows therefore that, burden of

**8. Overview of the various allocation of burden of proof in practice**

specificity and distinction to attribute it clearly to the seller.

It is expressly clear from the provisions of the Uniform Act that the allocation of the burden of proof for the seller's liability for non-conformity of the goods at the time the risk passes is imposed on the buyer. It is however rare to find under the Act an apportion of the burden to proof to the seller. There is a lack of necessary

In light of that and other considerations, attention should also be given to the fact that the Act is completely silent on the procedure for establishing the burden of proof. This can be explained by the fact that such an issue which is beyond the OHADA's scope of application and consequently be governed by the non-harmonised national laws of member countries. Consequently, such a question must be left to the courts of member states as a matter of procedural law. In addition, it is inappropriate for the Act, which relates to the cross-border sale of goods, to deal with matters of evidence or procedure. In fact, they are still some hurdles that beset the uniform working of the OHADA Uniform Act on General Commercial, considering the glaring differences between the procedural and evidential laws operating in the member States on matters of proof. This is as a result of the prevailing differences in legal cultures, procedures in the area of criminal proceedings which is out of the scope of the Act. Therefore, a degree of non-uniformity can be expected in matters of taking evidence and more broadly

In fact, the allocation of the burden of proof under the Uniform Act rests primarily on the basis of the *actori incumbit probatio* principle. Thus, the burden of

**258**

in allocating burden of proof.

<sup>45</sup> The author's translation.

proof is largely dependent on the position of the parties in the process, that is, who invokes Article 255 in its favour.

The common practice is that the responsibility of proof is often on the basis of proof proximity principle, whereby the responsibility to prove the non-conformity with standards of a good is transferred from the seller to the buyer once a purchased item is delivered to the buyer. The implication here is that the seller is responsible for proving the conformity or non-conformity of his/her good only a purchaser has not yet taken possession of or demanded the reservation of the particular good. *Therefore, the moment a buyer receives the delivered good raising the question of nonconformity, any further proof non-conformity would be his/her responsibility*.

It is suggested, however, that legal predictability should not be undermined any further by the introduction of the proof proximity principle into the UAGCL. As already alluded to, proof proximity can easily contravene the rule and exception principle, and its introduction necessitates a choice between the two, either as a matter of general principle or in the particular case. That, in turn, gives rise to an additional layer of complexity and unpredictability.

Reaching a substantial degree of international agreement on the rule and exception principle is a hard-earned achievement, which has potential to promote legal certainty in all areas falling within the Act's scope. From this standpoint, recognising proof proximity as the Act's general principle would be an unwelcome development.
